Citation Nr: 0930735
Decision Date: 08/17/09 Archive Date: 08/27/09
DOCKET NO. 06-22 678 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder, clinically diagnosed as bipolar disorder.
REPRESENTATION
Appellant represented by: Connecticut Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. Coyle, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1972 to January
1974, and from April 1975 to April 1979.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2005 rating decision by
the Hartford, Connecticut, Regional Office (RO) of the
Department of Veterans Affairs (VA), which denied entitlement
to service connection for an acquired psychiatric disorder.
A timely appeal was noted from that decision.
A hearing on this matter was held before the undersigned
Veterans Law Judge sitting at the RO on September 25, 2007.
A copy of the hearing transcript has been associated with the
file.
In January 2008, the Board remanded this issue to the RO (via
the Appeals Management Center (AMC)) for further evidentiary
development. After completion of the requested development,
the AMC returned the case to the Board for appellate review.
FINDING OF FACT
An acquired psychiatric disorder first manifested years after
service and is not related to service.
CONCLUSION OF LAW
An acquired psychiatric disorder was not incurred in or
aggravated by active military service, nor may a psychosis be
presumed to have been incurred therein. 38 U.S.C.A. §§
1110, 1112, 1113, 5103-5103A, 5107 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
In correspondence dated July 2005, the RO satisfied its duty
to notify the Veteran under 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b). Specifically, the RO notified the
Veteran of: information and evidence necessary to
substantiate the claims for service connection; information
and evidence that VA would seek to provide; and information
and evidence that the Veteran was expected to provide.
Additionally, in correspondence dated March 2006, the Veteran
was notified of the way initial disability ratings and
effective dates are established.
VA has done everything reasonably possible to assist the
Veteran with respect to his claim for benefits in accordance
with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service
treatment records have been associated with the claims file.
All identified and available treatment records have been
secured.
The Board declines to obtain a medical nexus opinion with
respect to the claim of service connection for an acquired
psychiatric disorder because, while there are current
diagnoses of an acquired psychiatric disorder, there is no
evidence of pertinent disability in service or for several
years following service. See Charles v. Principi, 16 Vet.
App. 370 (2002). In view of the absence of findings of a
psychiatric disorder in service and the first suggestion of
pertinent disability many years after active duty, relating a
psychiatric disorder to service would certainly be
speculative. Service connection may not be based on a resort
to pure speculation or even remote possibility. See 38
C.F.R. § 3.102. The duty to assist is not invoked, even
under Charles, where "no reasonable possibility exists that
such assistance would aid in substantiating the claim." 38
U.S.C.A. 5103A(a)(2). The Board is satisfied that the duties
to notify and assist have been met.
Service Connection
In general, service connection will be granted for disability
resulting from injury or disease incurred in or aggravated by
active military service. 38 U.S.C.A. §§ 1110, 1131; 38
C.F.R. § 3.303. If a condition noted during service is not
determined to be chronic, then generally a showing of
continuity of symptomatology after service is required for
service connection. 38 C.F.R. § 3.303(b). Service
connection may also be granted for any disease diagnosed
after discharge when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d). Service
connection for a psychosis is presumed if it is manifest to a
compensable degree within a year of separation from active
service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§
3.307, 3.309.
There must be medical evidence of a current disability,
medical or lay evidence of in-service incurrence or
aggravation of a disease or injury, and medical evidence
linking the current disability to that in-service disease or
injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson
v. West, 12 Vet. App. 247, 253 (1999).
Analysis
As a preliminary matter, it is noted that there is no medical
evidence of a psychosis manifesting to a compensable degree
within one year of the Veteran's separation; thus, the
presumptive period is not for application. See 38 C.F.R. §§
3.307, 3.309.
Review of the Veteran's service treatment records shows no
indication of a psychiatric disorder in service. His initial
enlistment examination, dated September 1971, and his two
separation examinations, dated November 1973 and March 1979,
were all negative for any mention of a psychiatric disorder.
There is no evidence that the Veteran sought treatment for a
psychiatric disorder in service or that he otherwise showed
symptoms of such a disability.
According to post-service treatment records, the Veteran
first sought treatment for a psychiatric disorder in 1995, at
which point he received an Axis I diagnosis of bipolar
disorder, first episode. Since 1995, the Veteran has
continued to seek treatment for a psychiatric disorder, which
has been characterized primarily as bipolar disorder, but has
also been diagnosed as both personality disorder and post-
traumatic stress disorder (PTSD). A review of the post-
service treatment records shows that the Veteran has not ever
related his symptoms to his service during the course of his
treatment for a psychiatric disorder. Moreover, none of the
medical professionals who have treated the Veteran over the
years have indicated that his disability resulted from his
active service.
Based upon the evidence of record, the Board finds that
service connection is not warranted in this case. While the
Veteran has current diagnoses of a psychiatric disorder,
there is no competent evidence that it is related to service.
The Veteran testified during his hearing that he did not seek
treatment for a psychiatric disorder until several years
after service. The medical evidence of record does not
indicate treatment for a psychiatric disorder until 1995,
more than 20 years after discharge. During the course of his
treatment for a psychiatric disorder, the Veteran has never
related his disability to his active service, nor have any of
his treatment providers noted a psychiatric disability as the
result of service.
During his September 2007 hearing, the Veteran testified that
he had nervous problems in service that have continued since
his discharge from service. Lay evidence concerning
continuity of symptoms after service, if credible, is
ultimately competent, regardless of the lack of
contemporaneous medical evidence. Buchanan v. Nicholson, 451
F.3d 1331 (Fed. Cir. 2006). However, the Board finds that
the reported history of continued symptoms since active
service is inconsistent with the remaining evidence of
record. There were no findings of psychiatric complaints or
disability in service and the separation examination in March
1979 revealed a normal psychiatric evaluation. On the Report
of Medical History at that time, the Veteran denied that he
had or had had depression or excessive worry, trouble
sleeping, loss of memory or nervous trouble of any sort.
This evidence undermines the credibility of his more recent
claims that nervous problems started in service. The post-
service medical evidence does not reflect clinical treatment
for a psychiatric disorder until 1995, over 20 years post-
discharge, and the 1995 clinical records do not point to
service as the date of onset.
Furthermore, the Veteran has not been shown to possess the
requisite training or credentials needed to render a
competent opinion as to medical causation. As such, his lay
opinion does not constitute competent medical evidence and
lacks probative value. See Routen v. Brown, 10 Vet. App.
183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492, 494-
95 (1992).
In conclusion, a preponderance of the evidence is against a
finding that the Veteran's acquired psychiatric disorder is
causally related to active service. Thus, the benefit of the
doubt rule is not applicable. See 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
ORDER
Entitlement to service connection for an acquired psychiatric
disorder, clinically diagnosed as bipolar disorder, is
denied.
____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs